• January 23, 2015

Minnesota Litigator - Stacks_of_moneyUpdate (January 23, 2015):  Oral arguments were held in Williams-Yulee earlier this week. That case will decide whether it is constitutional to bar judicial candidates from personally soliciting attorneys for campaign contributions. And the justices seem to be dividing along the usual lines. With Justice Kennedy, who will likely be the swing vote, largely silent during the argument.

The conservative justices pointed to ways the Florida speech solicitation policy has holes and is under-inclusive. So, for example, the justices were concerned about the role campaign committees may play. And, under the Florida rule, judicial candidates may send “thank you” notes to contributors.

The attorney for the Florida Bar argued that there were two interests at stake: the first amendment interest, of course, and also the interest in a fair and impartial judiciary. Some of the liberal justices noted that attorneys may feel obligated to respond to judicial candidate requests for funds, and that the solicitations undermine the appearance of impartiality, if not the reality.

Justice Kennedy authored Citizens United, and is a strong first amendment advocate. As mentioned, he was largely silent during the argument. There were a couple exchanges that were telling, though, and may suggest how things will turn out. The attorney for the penalized judicial candidate had said the Court could rule for his client and let states bar “one-to-one solicitation” by judicial candidates. Justice Kennedy was concerned about trying to define a limit, and said, “If we say, ‘Well, the one-on-one letter, that’s almost like a personal solicitation, we can ban that,’ then what about a letter to five people? And then we’re off to the races.”   At another point, the attorney for the disciplined judicial candidate said, “[T]here are some states that prohibit the judge from finding out who [has made contributions], Minnesota, for example, has that prohibition.”  And in response, Justice Kennedy said, “Well that — it seems that — that’s just unworkable.”  Justice Kennedy’s comments do not bode well for the Minnesota middle course, which allows judicial candidates to sign mass mailings and to personally solicit funds from groups of 20 or more.

A decision will be released before July 1, 2015.

Original post (January 14, 2015):  Next week, the U.S. Supreme Court will consider whether another regulation governing judicial elections is constitutional or whether it violates the first amendment.

On Tuesday, January 20, the Court will consider Williams-Yulee v. The Florida Bar. (For a free webinar on January 15 with background on the case, click here.)

In that case, the Florida Supreme Court upheld a canon barring judicial candidates from personal solicitation of campaign contributions (instead requiring judicial candidates to raise funds through committees). The appellant in that case – Lanell Williams-Yulee – running for a county court seat, sent personal letters to potential donors asking for campaign contributions. She was reprimanded and fined $1800 for violating the anti-solicitation ban in the state’s Code of Judicial Conduct. The Florida Supreme Court upheld the constitutionality of the ban, ruling that it helped “ensure that judges engaged in campaign activities are able to maintain their status as fair and impartial arbiters of the law.” The case is now at the Supreme Court’s doorstep.

The Florida case is the continuation of a drama that began in Minnesota.

In Act I, the U.S. Supreme Court struck down the Minnesota canon that barred judicial candidates from announcing their views on disputed legal and political issues. Republican Party of Minnesota v. White, 536 U.S. 765 (2002)(White I).

In Act II, the Eighth Circuit evaluated additional judicial canons barring some partisan activities and fund-raising by candidates in light of White I. One of the canons it considered was a blanket ban on all personal solicitations by candidates. Republican Party of Minnesota v. White, 416 F.2d 738 (8th Cir. 2005)(White II). And it held that banning all personal solicitations by candidates is overbroad and violates the first amendment. White II at 766.

Subsequently, Minnesota amended its code, so that it does not bar all personal solicitations. Under the amended code, Minnesota judicial candidates may personally sign mass mailings, and may personally solicit funds from groups of 20 or more. Under the code, campaign committees are to act as a buffer, preventing candidates from knowing who has made contributions and who has not.

The latest Minnesota development took place in 2012, when a plurality of the Eighth Circuit en banc upheld the amended code. Wersal v. Sexton, 674 F.3d 1010 (8th Cir. 2012), cert. denied.

All of these cases have involved some competing values. On the one hand, there is the interest in free speech. On the other hand, the interests in the fair and impartial decision of cases. And, of at least equal importance to our democracy, the perception among the public that cases are reviewed and decided impartially.

The canon at issue in the Florida case is more stringent than our Minnesota rule. Like Minnesota’s original canon, it bars all personal solicitation of funds by judicial candidates. If the U.S. Supreme Court upholds the Florida canon, our provision would be more lax than needed. If the Court strikes it down, our canon may not be permissive enough. Perhaps the Court will address the Minnesota approach as a middle course.

Since White I has been decided, we have seen some politicization of our judicial races. It feels like we’re sliding down a slippery slope. Money has been flooding into state judicial elections around the country: $152 million in spending on judicial election races over the last three cycles (according to Justice at Stake which tracks spending). So far, we in Minnesota haven’t seen the kind of spending seen elsewhere in the country. But do we really think we’re immune? As lawyers we need to be watchful about these changes, and help the public understand why we need a nonpartisan, nonpolitical judiciary.

With the spending and with an erosion of the campaign restrictions will come an erosion of public trust in the judiciary. And that is really all it has.

For more background on the Williams-Yulee case from the Brennan Center, click here. And, again, to sign up the January 15 webinar, click here.

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